81 FR 23180 - Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 76 (April 20, 2016)
Federal Register Volume 81, Issue 76 (April 20, 2016)
| Page Range | 23180-23187 | |
| FR Document | 2016-08916 |
[Federal Register Volume 81, Number 76 (Wednesday, April 20, 2016)] [Rules and Regulations] [Pages 23180-23187] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-08916] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2013-0556, FRL-9945-14-Region 8] Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2 , 2010 SO2 , and 2012 PM2.5 National Ambient Air Quality Standards; Montana AGENCY: Environmental Protection Agency. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving elements of State Implementation Plan (SIP) revisions from the State of Montana to demonstrate the State meets infrastructure requirements of the Clean Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008, lead (Pb) on October 15, 2008, nitrogen dioxide (NO2 ) on January 22, 2010, sulfur dioxide (SO2 ) on June 2, 2010 and fine particulate matter (PM2.5 ) on December 14, 2012. The EPA is also approving 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. The EPA is conditionally approving CAA section 110(a)(2)(C) and (J) with regard to Prevention of Significant Deterioration (PSD) and element 3 of 110(a)(2)(D)(i)(II) for the 2008 ozone, 2008 Pb, 2010 NO2 , 2010 SO2 , and 2006 and 2012 PM2.5 NAAQS. The EPA is disapproving element 4 of CAA section 110(a)(2)(D)(i)(II) for the 2008 ozone, 2010 NO2 , 2010 SO2, and 2006 and 2012 PM2.5 NAAQS. Finally, the EPA is approving SIP revisions the State submitted to update Montana's PSD program and provisions regarding state boards. DATES: This rule is effective on May 20, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2013-0556. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, 303-312-6563, [email protected]. SUPPLEMENTARY INFORMATION: I. Background Infrastructure requirements for SIPs are provided in section 110(a)(1) and (2) of the CAA. Section 110(a)(2) lists the specific infrastructure elements that a SIP must contain or satisfy. The elements that are the subject of this action are described in detail in our proposed rulemaking (NPR) published on January 26, 2016 (81 FR 4225). In our NPR, the EPA proposed to approve, conditionally approve, take no action on, and disapprove infrastructure elements for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 1997, 2006 and 2012 PM2.5 NAAQS from the State's certifications. In this rulemaking, we are taking final action to approve infrastructure elements from the State's certifications. We are also conditionally approving elements (C), D(i)(II) element 3 and (J) with respect to the requirement to have a PSD program that meets the requirements of part C of Title 1 of the Act. The EPA is taking final action to disapprove (D)(i)(II) element 4 for the 2006 PM2.5 , 2008 ozone, 2010 NO2 , 2010 SO2, and 2012 PM2.5 NAAQS. We are also taking final action to approve revisions to the Administrative Rules of Montana (ARM) from the August 21, 2012 submittal and conditionally approve a revision from the March 24, 2015 submittal to bring Montana's PSD program up to date with respect to current requirements for PM2.5 . In this action, we are taking final action to approve new ARM and sections of the Montana Code Annotated submitted on December 17, 2015 to satisfy requirements of element (E)(ii), state boards. II. Response to Comments We received two comment letters during the public comment period. One comment letter was submitted anonymously and the other by Andrea Issod from the Sierra Club Environmental Law Program (Sierra [[Page 23181]] Club) and Anne Hedges from the Montana Environmental Information Center (MEIC). We also received a request for comment period extension from Andrea Issod from the Sierra Club. The EPA contacted the commenter and after a short discussion, the commenter decided not to follow through with their extension request. Comment 1: The EPA cannot approve the PSD portions of all these Infrastructure SIPs until EPA has finally approved the Class I and Class II PM2.5 increments into the Montana SIP. I appreciate EPA's efforts to address this issue. Response: We agree with the commenter that adoption of PM2.5 increments is a necessary requirement when assessing a state's PSD program for the purposes of CAA Section 110(a)(2)(C), (D)(i)(II) element 3, and (J). In this action, we are approving the necessary portions of Montana's August 21, 2012 submission to satisfy the requirements of the October 20, 2010 rule, ``Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5 )--Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). Montana adopted 40 CFR 51.166(c)(1), which includes Class I and Class II increments, into ARM 17.8.804(1). By meeting this structural requirement for the PSD program in its SIP, the State has also met the relevant Infrastructure SIP elements relevant to the PSD program. Accordingly, the EPA concludes that the issue identified by the commenter has been properly addressed. Comment 2: The Sierra Club and Montana Environmental Information Center (MEIC) Comment Letter states the following on pages 2, 3, 26 and 27: Sierra Club and Montana Environmental Information Center (MEIC) submit to EPA that the Montana PSD program as implemented by MTDEQ fails to require PSD permits for all modified major sources that are required to be covered under the SIP PSD permitting program pursuant to 40 CFR 51.166, due to MTDEQ's policy interpretations of its PSD program that result in rules that are less stringent and thus less inclusive than the federal PSD program. Further, because the MTDEQ's implementation of the Montana PSD program does not cover all PSD- subject modified major sources, MTDEQ's implementation of its PSD program also fails to cover all regulated [New Source Review] NSR pollutants including GHG pollutants for which the PSD permitting requirements only apply to ``anyway sources,'' i.e., sources that would otherwise be subject to PSD permitting for other pollutants. MTDEQ is following policy interpretations that differ from its EPA-approved PSD rule incorporated into the Montana SIP (which tracks EPA's 1980 PSD regulations) and as a result, Montana's implementation of the PSD program is less inclusive and less stringent than the 1980 federal PSD rules because it fails to include all physical or operational changes that would be major modifications under the federal PSD requirements. Further, MTDEQ's policy interpretations mean that its implementation of the PSD program is less stringent than the 2002 NSR Reform Rules promulgated by EPA on December 31, 2002 (67 Fed. Reg. 80186), as amended by EPA on June 13, 2007 (72 Fed. Reg. 32526) for physical or operational changes at existing major sources. Although EPA has stated in the proposed approval of the Montana infrastructure SIP approval that it ``does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP'' including existing provisions of the state's PSD program that may be inconsistent with the current federal PSD rules reflecting NSR Reform, EPA has no basis for attempting to limit public comment and EPA review of this issue when a state's policy interpretations of its PSD program result in a program that is less inclusive and less stringent than the current federal PSD program, and is therefore contrary to law. * * * * * EPA cannot assume that Montana's minor source permitting program will ensure protection of these NAAQS for those modified sources that, pursuant to MTDEQ's policy interpretations, do not trigger applicability under the Montana PSD program as major modifications. The Montana SIP includes an exemption from the requirement to obtain a Montana Air Quality Permit for ``construction or changed conditions of operation'' at a facility that does not increase the facility's potential to emit by more than 5 tons per year. ARM 17.8.743(1), ARM 17.8.745 ``Exclusion for De Minimis Changes.'' This rule allows a source to apply an emissions test comparing potential to emit pre- and post-change, and if the increase in potential to emit is less than 5 tons per year, no Montana Air Quality Permit is required for the construction or changed operation. For those modifications to existing major sources that do not trigger PSD based on MTDEQ's policy interpretations allowing the source to use an actual emissions to [an] estimated future actual emissions test, it is likely that such a modified source could avoid the requirement to obtain a Montana Air Quality permit under the potential-to[- ]potential comparison of the de minimis exemption in Montana's SIP. Even if a modified major source could not initially be exempt under the potential-to-potential test of the Montana de minimis rule, the Montana rule also allows an existing source to revise the federally enforceable emission limitations (thus reducing its potential to emit) through an administrative process pursuant to ARM 17.8.764 (see ARM 17.8.745(1)(a)(5) and (2). While the de minimis rule does not allow construction or changed conditions that would affect the plume rise or dispersion characteristics of emissions in a manner that would cause or contribute to a NAAQS violation (see ARM 17.8.745(1)(a)(iii)), this provision will not ensure protection of the NAAQS due to emissions from the modified major sources that avoid PSD permitting due to MTDEQ's policy interpretations. To determine if a modified source will cause or contribute to a violation of the NAAQS, the de minimis rule requires notification to MTDEQ if the physical or operational change will change stack height, stack diameter, stack flow, stack gas temperature, or source location, but it does not require ambient air modeling. ARM 17.8.745(b). However, given that the majority of existing sources have never been modeled for compliance with the recent NAAQS for lead, ozone, 1-hour NO2 , 1-hour SO2 , or PM2.5 NAAQS, it will be extremely difficult for MTDEQ to determine that a change in stack parameters or source location would cause or contribute to a violation of the NAAQS. Further, it is not evident that MTDEQ always requires submittal of such information to determine if construction or changed operating conditions at an existing source would affect the plume rise or dispersion characteristics of a modified source, given that MTDEQ allows certain emission sources to be excluded from notification requirements of the de minimis rule pursuant to ARM 17.8.745(c). Response: The commenters' concerns are directed not to whether the existing SIP for Montana meets the relevant structural requirements for PSD programs, but rather to whether Montana is in fact faithfully implementing the existing provisions of its EPA-approved SIP. As the EPA has explained in other contexts, comments like these highlight an important distinction between whether an infrastructure SIP submission meets the applicable requirements of the CAA on its face (i.e., pertain to the facial sufficiency of the state's SIP), and whether a state is actually complying with the requirements of that SIP (i.e., pertain to adequacy of the state's implementation of the SIP).\1\ These comments implicate the question of the degree to which implementation concerns are relevant in the context of acting on a state's infrastructure SIP. In the context of an infrastructure SIP submission, the EPA interprets the requirements of section 110(a)(1) and (2) to require the Agency to focus on whether the state has a SIP that provides the requisite legal framework for implementation, maintenance and enforcement of the NAAQS. Generally speaking, the EPA's review of infrastructure SIP submissions is limited to whether, pursuant to CAA section 110(a)(2), the submission [[Page 23182]] facially meets the requirements of the statutory criteria outlined therein, as applicable. In the case of section 110(a)(2)(C), for example, the statute requires a state to have a SIP that ``include[s] a program to provide for . . . regulation of the modification and construction of any stationary sources . . . including a permit program as required in parts C and D of this subchapter.'' Thus, the EPA reviews a state's infrastructure SIP submission to assure that the structural elements of the state's PSD permitting program meets current CAA requirements for such programs, e.g., that it addresses GHG emissions. --------------------------------------------------------------------------- \1\ See ``Approval and Disapproval and Promulgation of Implementation Plans; Texas; Infrastructure and Interstate Transport Requirements of the 1997 Ozone and the 1997 and 2006 PM2.5 NAAQS,'' 76 FR 81371 (Dec. 28, 2011). --------------------------------------------------------------------------- This is not to say that the EPA has no role in reviewing whether a state is faithfully implementing its approved SIP, or otherwise complying with the CAA and its implementing regulations. To the contrary, there are multiple statutory tools that the EPA can use to rectify problems with state implementation of its SIP, and the existence of these tools is consistent with the EPA's interpretation of section 110(a)(2) with respect to the Agency's role in reviewing infrastructure SIP submissions. For example, the CAA provides the EPA the authority to issue a SIP call, 42 U.S.C. 7410(k)(5); make a finding of failure to implement, id. Sec. Sec. 7410(m), 7509(a)(4); and take measures to address specific permits pursuant to the EPA's case-by-case permitting oversight. See, e.g., Sec. 7661d(b). The appropriateness of employing these authorities depends on the nature and extent of the particular implementation problems at issue. With respect to Montana's infrastructure SIP submission, the EPA analyzed the submission itself, and evaluated the text of its provisions for compliance with the relevant elements of section 110(a)(2). In the proposal, the EPA explicitly evaluated the State's submission on a requirement-by-requirement basis and explained its views on the adequacy of the State's SIP for purposes of meeting the infrastructure SIP requirements. The EPA appreciates and takes seriously the commenters' assertions that Montana has adopted ``policy interpretations'' outside the context of the SIP that may undermine the State's implementation of the SIP as approved by the EPA. However, because this action involves a review of the SIP itself, the EPA is not evaluating the merits of these assertions concerning implementation of the SIP in the context of this action. Instead, the EPA intends to evaluate the merits of these assertions, separate from this action, at a future time. In the meantime, the EPA is finalizing its proposed approval of the infrastructure SIP submission that is currently before the Agency. If the EPA later determines that there are indeed concerns with respect to the implementation of the PSD program in Montana, the Agency intends to take appropriate action to ensure those problems are rectified using whatever statutory tools are appropriate to the implementation problem identified. With respect to the requirements related to PSD relevant to this approval of the infrastructure SIP submission, the EPA has determined that the State's SIP as previously approved, and as revised in this action, meets the relevant structural requirements for purposes of PSD in section 110(a)(2)(C), (D)(i)(II) element 3, and (J). Some examples of these basic structural SIP requirements include having state law authority to carry out the SIP, an overarching permitting program in place, and a properly deployed monitoring network. As to the PSD program in particular, these basic structural requirements include those provisions necessary for the permitting program to address all federally regulated pollutants and the proper sources. The EPA considers action on the infrastructure SIP submissions required by section 110(a)(1) and (2) to be an evaluation of a state's SIP to assure that it meets the basic structural requirements for the new or revised NAAQS, not a time to address all potential substantive defects in existing SIP provisions, or alleged defects in implementation of the SIP. [Therefore, EPA generally considers evaluations of a state's implementation of its NSR program to be outside the scope of an infrastructure SIP review, rather than an unambiguous requirement of the EPA's action on an infrastructure SIP with regard to section 110(a)(2)(C).] Comment 3: The Sierra Club and MEIC comment letter gives a history of the Montana PSD program as well as a history of the corresponding federal PSD program with respect to how it is determined whether a physical or operational change at an existing major stationary source is subject to PSD permitting requirements. The comment discusses MTDEQ's policy interpretations recently set forth in a citizen suit enforcement proceeding, stating that these interpretations ``make Montana's implementation of the PSD program less stringent''. The Sierra Club and MEIC Comment Letter states the following on pages 4 and 5: The basic structure of Montana's PSD permitting rules has been the same since the EPA's initial SIP approval of Montana's PSD rules. Specifically, Montana's PSD rules define the applicability to PSD for physical or operational changes at an existing source based on the same regulatory language in EPA's PSD regulations as of 1980. That is, to determine if a physical change or change in the method of operation at an existing major source is subject to PSD as a major modification, one evaluates changes in `actual emissions [.] The comment evaluates the definition of ``actual emissions'' and how Montana's SIP has defined this term over the years, and notes two substantive revisions to the definition of ``actual emissions'' since 1980, stating on pages 6, 7, and 8: The first revision was made in 1992, where EPA modified the definition of ``actual emissions'' to allow electric utility steam generating units (EGUs) to use the ``representative actual annual emissions,'' and adopted associated definitions including of ``representative actual annual emissions'' and emissions reporting provisions for EGUs. 57 Fed. Reg. 32314 at 32335-6 (July 21, 1992); 40 CFR 51.166(b)(21)(iv) and (v), (b)(30), and (b)(32). In addition, although EPA did not adopt any regulatory revisions regarding the actual emissions baseline before a physical or operational change, EPA set forth a presumption that it considers any 2 year period in the 5 years immediately preceding the physical or operational change at an EGU to be representative of normal source operations for the EGU. 57 Fed. Reg. 32325. The 1992 rulemaking is referred to as the ``WEPCO Rule'' because the rule changes came about as a result of the 7th Circuit Court decision in Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7th Cir. 1990) (``WEPCO Decision''). A review of the current SIP-approved Montana rules show that Montana did not revise its PSD regulations to incorporate any of the regulatory changes of the 1992 WEPCO rulemaking. In 2002, EPA again revised the definition of ``actual emissions'' and adopted new terms and definitions of ``projected actual emissions'' and ``baseline actual emissions'' along with numerous other revisions to its PSD regulations. 67 Fed. Reg. 80186- 80289 (Dec 31, 2002, also known as ``NSR Reform'' Rule). EPA adopted a two-step process for determining PSD applicability for physical or operational changes. First, it must be determined if a project will result in a significant emission increase of any regulated NSR pollutant and, if so, then second, it must be determined if the project will result in a significant net emissions increase of any regulated NSR pollutant. 67 Fed. Reg. 80260; 40 CFR 51.166(a)(7)(iv)(a)-(f). EPA essentially allowed all sources (not just EGUs as allowed in 1992) to use an actual-to-projected actual emissions increase test to determine whether a physical or operational change was a major modification, except in certain circumstances such as when a new emissions unit is added. 67 Fed. Reg. 80260-2; 40 CFR 51.166(a)(7)(iv)(a)-(f), (b)(40) and (b)(47). In the NSR Reform rules, EPA adopted several new rules. EPA adopted a new definition of ``baseline actual emissions'' which codified the 2-in-5 year presumptive baseline that EPA announced in the 1992 [[Page 23183]] WEPCO rule for EGUs, and also promulgated a provision for non-EGUs allowing them to look back ten years before a physical or operational change in determining baseline emissions. 67 Fed. Reg. 80263-4; 40 CFR 51.166(b)(47). EPA also adopted a new definition of ``projected actual emissions'' which defines how modified sources are to project actual emissions when such modifications are not subject to the actual-to-potential to emit test pursuant to the procedures identified in 40 CFR 51.166(a)(7)(iv)(a)-(f). 67 Fed. Reg. 80262-3; 40 CFR 51.166(b)(40). In addition, EPA adopted provisions for reporting to permitting authorities pre- and post- project when there is a reasonable possibility that a project that is not considered a major modification may result in a significant emissions increase. 67 Fed. Reg. 80264; 40 CFR 51.166(r)(6) and (r)(7). There were numerous other revisions to the federal permitting rules adopted in the December 31, 2002 rulemaking, such as requirements to establish PALs. Two other new provisions of the 2002 NSR Reform rule regarding pollutant control projects and clean units were later eliminated from the PSD regulations, after being vacated by the U.S. Court of Appeals for the D.C. Circuit in New York v. EPA, 413 F. 3d 3 (D.C. Cir. 2005). 72 Fed. Reg. 32526-9 (June 13, 2007). A review of the EPA-approved SIP for Montana shows that Montana did not adopt any of the 2002 New Source Review Reform revisions as revisions to its PSD regulations. Although EPA has made some revisions to its rules regarding baseline emissions and how to project future emissions for physical or operational changes at existing sources, it is clear that, since 1986, the Montana SIP has continued to have the same definition of ``actual emissions'' and the same applicability approach as applied under EPA's 1980 PSD rules. On its face, Montana's PSD rules track EPA's PSD rules as they existed in 1980, and Montana's rules do not implement the 1992 or 2002 federal rule revisions. Given that the 1992 and 2002 federal rule revisions were intended to be less inclusive than the 1980 PSD rule, allowing for more modifications to not be considered as major modifications subject to PSD review, would be less stringent than the current federal PSD rules. Montana is implementing policy interpretations regarding the definition of ``actual emissions,'' which pertain to both the determination of actual emissions before a physical or operational change and the determination of the future emissions expected after a physical or operational change, which are less stringent than EPA's interpretation of the same language of its 1980 PSD rules, resulting in Montana's program as implemented being less stringent than EPA's 1980 PSD requirements. In addition, those policy interpretations of Montana's PSD program are less stringent than EPA's current PSD requirements reflective of NSR Reform.'' Response: The commenter's assertion that Montana is, through policy interpretations, implementing its PSD program in a less-stringent manner than required by PSD rules is addressed in our response to comment 2. We note that, while Montana's alleged ``policy interpretations'' of its SIP are outside the scope of the EPA's review in the context of an infrastructure SIP submission, we evaluated the ``structural'' requirements for a PSD program to fulfill the NAAQS infrastructure requirements as required in 110(a)(2)(C), (D)(i)(II) element 3, and (J). In the context of the specific applicability issues raised by the commenter, we have determined that Montana's PSD program provides for the implementation, maintenance, and enforcement of the NAAQS requirements being approved in this rulemaking by applying the EPA's 1980 PSD rules. In addition, EPA has evaluated the State's SIP for compliance with other structural elements such as the Phase 2 Ozone Implementation Rule, 2008 PM2.5 NSR, and 2010 PM2.5 Increments (a complete discussion can be found in section VI. Program for enforcement of control measures of the proposed rule). While we agree with the history the commenter has provided with regard to what Montana has and has not adopted into the State's EPA- approved PSD program, we note that Montana was not required to adopt any of the provisions of the 1992 WEPCO Rule. For example, the state of Utah adopted WEPCO revisions, which we acted on in 69 FR 51368 (Aug. 19, 2004). In that rulemaking, we explained that states generally: ``were not required to adopt revisions to implement these changes, although these changes are in effect in areas where the Federal PSD permitting regulations apply. Utah has opted to revise its NSR program to incorporate the changes to the EPA's NSR rules promulgated on July 21, 1992.'' We note that the commenter agrees with this premise. See, e.g., Sierra Club and MEIC Comment Letter at page 16 (stating that ``states were not required to adopt that new rule language'' in reference to the 1992 WEPCO Rule). Because Montana was not required to adopt the 1992 WEPCO Rule, or to revise its SIP in response to that EPA action, the EPA need not review the state's infrastructure SIP submission for consistency with the requirements of the 1992 WEPCO Rule. In the context of evaluating a state's infrastructure SIP submission with respect to PSD permitting program requirements, the EPA evaluates only whether the SIP meets structural requirements (e.g., having authority to address GHG emissions in such permits). Thus, the State's decision whether or not to revise its PSD permitting program to incorporate the changes contemplated in the 1992 WEPCO Rule does not preclude the EPA from approving Montana's infrastructure SIP in this action. This is consistent with the EPA's September 13, 2013, ``Guidance on Infrastructure State Implementation Plan (SIP) Elements Under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' \2\ (2013 Guidance, contained within this docket), wherein we explain that: ``Structural PSD program provisions include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including GHG. Structural PSD provisions do not include provisions which under 40 CFR 51.166 are at the option of the air agency.'' --------------------------------------------------------------------------- \2\ Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, Guidance on Infrastructure State Implementation Plan (SIP) Elements Under the Clean Air Act Sections 110(a)(1) and 110(a)(2) (Sept. 13, 2013). --------------------------------------------------------------------------- In the EPA's 2013 Guidance and in several EPA rulemakings, the Agency discussed the issue of addressing the 2002 NSR Reform Rule, which followed the 1992 WEPCO Rule, within the context of infrastructure SIPs. Specifically, the EPA explained in the 2013 Guidance that the issue of ``existing SIP provisions for PSD programs that have not addressed the NSR Reform Rules may be dealt with separately, outside of the context of acting on a state's infrastructure SIP.'' \3\ The EPA explained its reasoning for this approach to the NSR Reform Rules in a 2007 guidance document,\4\ which we further explained in our July 13, 2011 rulemaking (76 FR 41078. See page 41078, column three, first full paragraph through page 41079, first column). --------------------------------------------------------------------------- \3\ 2013 Guidance at p. 28. \4\ ``Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards,'' from William T. Harnett, Director Air Quality Policy Division, to Air Division Directors, Regions I-X (October 2, 2007). --------------------------------------------------------------------------- Comment 4 Sierra Club and MEIC Comment Letter The comment asserts that Montana's ``policy interpretations'' of the term ``actual emissions'' as set forth in amicus briefs and appearances in a citizen suit PSD enforcement action against the Colstrip Power Plant are inconsistent and less stringent than the EPA's interpretation of the same language in the 1980 federal PSD regulations and are less stringent than the current federal PSD regulations. The comment also states that MTDEQ's interpretation of how to determine baseline emissions is inconsistent with and less stringent than the EPA's [[Page 23184]] historical and current PSD regulations. The comment states that the MTDEQ never informed the public of its policy interpretations set forth in the amicus briefs, and Montana does not have authority to implement policy without going through rulemaking. Response: In our response to comment 2, we discussed the difference between the legal sufficiency and the structural requirements of a PSD program within the context of evaluation of the infrastructure SIP submission and the implementation of the EPA approved SIP. The commenter's assertion that Montana's PSD regulations are less stringent than the 1980 federal PSD regulations and the current federal PSD regulations is based upon allegations concerning how Montana interprets federal PSD regulations and the State's own ``policy interpretations.'' As mentioned in our response to comment 2, these implementation concerns fall outside the scope of this action because the EPA is not evaluating the issue of how the state implements its PSD program in this context. In that same vein, the EPA does not consider this the appropriate context in which to evaluate whether MT DEQ's interpretations of PSD applicability tests, or how the State defines ``actual emissions'' or ``like-kind replacements,'' etc., and whether these interpretations make Montana's PSD program less stringent than the 1980 federal PSD regulations and the current federal PSD regulations. As noted in our response above, the EPA has other authorities to take appropriate action to address alleged SIP implementation deficiencies. III. Final Action For reasons expressed in the proposed rule, the EPA is taking final action to approve infrastructure elements from the State's certifications as shown in Table 1. We are also conditionally approving elements (C), D(i)(II) element 3 and (J) with respect to the requirement to have a PSD program that meets the requirements of part C of Title 1 of the Act as shown in Table 2. Elements we are taking no action on are reflected in Table 4. The EPA is disapproving (D)(i)(II) element 4 for the 2006 PM2.5 , 2008 ozone, 2010 NO2 , 2010 SO2, and 2012 PM2.5 NAAQS (Table 3). Finalization of this disapproval does not require further action from the State, and does not create a new FIP obligation for the EPA. We are also approving revisions to the ARM from the August 21, 2012 submittal (Table 1) and conditionally approving a revision from the March 24, 2015 submittal (Table 2) to bring Montana's PSD program up to date with respect to current requirements for PM2.5 . If Montana does not submit a SIP revision to correct the language in ARM 17.8.818(7)(a)(iii) within one year of this action, conditional approvals will automatically revert to disapprovals for ARM 17.8.818(7)(a)(iii), and elements (C), D(i)(II) element 3 and (J) with respect to PSD requirements. Finally, we are approving new ARM and sections of the Montana Code Annotated submitted on December 17, 2015 to satisfy requirements of element (E)(ii), state boards. A comprehensive summary of infrastructure elements, and revisions and additions to the ARM organized by the EPA's final rule action are provided in Table 1, Table 2, Table 3 and Table 4. Table 1--List of Montana Infrastructure Elements and Revisions That the EPA Is Approving ------------------------------------------------------------------------ Approval ------------------------------------------------------------------------- February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS: (D)(ii) for both the 1997 and 2006 PM2.5 NAAQS. December 19, 2011 submittal--2008 Pb NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4, (D)(ii), (E), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). January 3, 2013 submittal--2008 Ozone NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (E), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). June 4, 2013 submittal--2010 NO2 NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(i)(I) elements 1 and 2, (D)(ii), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). July 15, 2013 submittal--2010 SO2 NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). December 17, 2015 submittal--2012 PM2.5 NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). August 21, 2012 submittal--Revisions to ARM, Prevention of Significant Deterioration: ARM 17.8.801(3), 17.8.801(21), 17.8.801(27), 17.8.804(1), 17.8.818(7)(a)(iv)-(xi), 17.8.822(9), 17.8.822(10), 17.8.822(11), 17.8.822(12) and 17.8.825(4). December 17, 2015 submittal--New Rules to ARM, CAA Section 128 New Rule I (ARM 17.8.150), II (ARM 17.8.151), III (ARM 17.8.152), and Montana Code Annotated 2-2-121(2)(e) and 2-2-121(8). ------------------------------------------------------------------------ Table 2--List of Montana Infrastructure Elements and Revisions That the EPA Is Conditionally Approving ------------------------------------------------------------------------ Conditional approval ------------------------------------------------------------------------- February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS: (D)(i)(II) element 3 for the 2006 PM2.5 NAAQS. December 19, 2011 submittal--2008 Pb NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. January 3, 2013 submittal--2008 Ozone NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. June 4, 2013 submittal--2010 NO2 NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. July 15, 2013 submittal--2010 SO2 NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. [[Page 23185]] December 17, 2015 submittal--2012 PM2.5 NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. March 24, 2015 submittal--Revisions to ARM, Prevention of Significant Deterioration: ARM 17.8.818(7)(a)(iii). ------------------------------------------------------------------------ Table 3--List of Montana Infrastructure Elements That the EPA Is Disapproving ------------------------------------------------------------------------ Disapproval ------------------------------------------------------------------------- February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS: (D)(i)(II) element 4 for the 2006 PM2.5 NAAQS. January 3, 2013 submittal--2008 Ozone NAAQS: (D)(i)(II) element 4. June 4, 2013 submittal--2010 NO2 NAAQS: (D)(i)(II) element 4. July 15, 2013 submittal--2010 SO2 NAAQS: (D)(i)(II) element 4. December 17, 2015 submittal--2012 PM2.5 NAAQS: (D)(i)(II) element 4. ------------------------------------------------------------------------ Table 4--List of Montana Infrastructure Elements and Revisions That the EPA Is Taking No Action On ---------------------------------------------------------------------------------------------------------------- No action ----------------------------------------------------------------------------------------------------------------- Reason ``No Action'' ------------------------------------------------------- Revision Revision deletes Revision Revision to made in a section of superseded Revised section be made in separate the ARM by revision future rulemaking never in March 24, rulemaking action (80 approved 2015 State action FR 72937) into State's submittal SIP ---------------------------------------------------------------------------------------------------------------- January 3, 2013 submittal--2008 Ozone NAAQS: (D)(i)(I) elements 1 and 2.......................... ............ x ............ ............ July 15, 2013 submittal--2010 SO2 NAAQS: (D)(i)(I) elements 1 and 2.......................... x ............ ............ ............ December 17, 2015 submittal--2012 PM2.5 NAAQS: (D)(i)(I) elements 1 and 2.......................... x ............ ............ ............ August 21, 2012 submittal--Revisions to ARM, Prevention of Significant Deterioration: ARM 17.8.818(7)(a)(iii)............................. ............ ............ ............ x ARM 17.8.820(2)..................................... ............ ............ ............ x March 24, 2015 submittal--Revisions to ARM, Prevention of Significant Deterioration: ARM 17.8.820(2)..................................... ............ ............ x ............ ---------------------------------------------------------------------------------------------------------------- IV. Incorporation by Reference In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the ARM and Montana Code Annotated discussed in section III, Final Action of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information). V. Statutory and Executive Orders Review Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this final action merely approves some state law as meeting federal requirements; this final action does not impose additional requirements beyond those imposed by state law. For that reason, this final action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, Oct. 4, 1993); Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); Does not have federalism implications as specified in Executive [[Page 23186]] Order 13132 (64 FR 43255, Aug. 10, 1999); Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and, Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, Feb. 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 20, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: March 30, 2016. Debra H. Thomas, Acting Regional Administrator, Region 8. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart BB--Montana 0 2. Section 52.1370 is amended by: 0 a. In paragraph (c) adding in numerical order, the table entries for ``17.8.150'', ``17.8.151'', and ``17.8.152''; and revising the table entries for ``17.8.801'', ``17.8.804'', ``17.8.818'', ``17.8.822'', and ``17.8.825''; and 0 b. In paragraph (e), under ``(1) Statewide'' adding three entries at the end of the table. The revisions and additions read as follows: Sec. 52.1370 Identification of plan. * * * * * (c) * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- State EPA final rule State citation Rule title effective date date Final rule citation Comments -------------------------------------------------------------------------------------------------------------------------------------------------------- (1) Statewide -------------------------------------------------------------------------------------------------------------------------------------------------------- (i) Administrative Rules of Montana, Subchapter 01, General Provisions -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * 17.8.150............................. Definitions.................. 10/30/2015 4/20/2016 [Insert Federal ......................... Register citation]. 17.8.151............................. Board Action................. 10/30/2015 4/20/2016 [Insert Federal ......................... Register citation]. 17.8.152............................. Reporting.................... 10/30/2015 4/20/2016 [Insert Federal ......................... Register citation]. -------------------------------------------------------------------------------------------------------------------------------------------------------- (vi) Administrative Rules of Montana, Subchapter 08, Prevention of Significant Deterioration of Air Quality -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * 17.8.801............................. Definitions.................. 10/14/2011 4/20/2016 [Insert Federal ......................... Register citation]. 17.8.804............................. Ambient Air Increments....... 10/14/2011 4/20/2016 [Insert Federal ......................... Register citation]. 17.8.818............................. Review of Major Stationary 10/10/2014 4/20/2016. [Insert Federal ......................... Source and Major Register citation]. Modifications--Source Applicability and Exemptions. 17.8.822............................. Air Quality Analysis......... 10/14/2011 4/20/2016 [Insert Federal ......................... Register citation]. 17.8.825............................. Sources Impacting Federal 10/14/2011 4/20/2016 [Insert Federal ......................... Class I Areas--Additional Register citation]. Requirements. [[Page 23187]] * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * (e) * * * ---------------------------------------------------------------------------------------------------------------- Notice of Title/subject State final rule NFR citation effective date date ---------------------------------------------------------------------------------------------------------------- (1) Statewide ---------------------------------------------------------------------------------------------------------------- * * * * * * * Infrastructure Requirements for the 2008 Lead, N/A 4/20/2016 [Insert Federal Register 2008 8-hour Ozone, 2010 NO2, 2010 SO2, and citation]. 2012 PM2.5 National Ambient Air Quality Standards. Infrastructure Requirements, Interstate N/A 4/20/2016 [Insert Federal Register Transport of Pollution 110(a)(2)(D)(ii) for citation]. the 1997 and 2006 PM2.5 NAAQS. Montana Code Annotated 2-2-121(2)(e) and 2-2- N/A 4/20/2016 [Insert Federal Register 121(8). citation]. * * * * * * * ---------------------------------------------------------------------------------------------------------------- * * * * * [FR Doc. 2016-08916 Filed 4-19-16; 8:45 am] BILLING CODE 6560-50-P
![23180 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Rules and Regulations
November 6, 2009, is conditionally ENVIRONMENTAL PROTECTION 1595 Wynkoop Street, Denver, Colorado
approved for Clean Air Act sections AGENCY 80202–1129. The EPA requests that if at
110(a)(2)(C)(ii), (D)(i)(II), and (J)(iii) only all possible, you contact the individual
as it relates to the aspect of the PSD 40 CFR Part 52 listed in the FOR FURTHER INFORMATION
program pertaining to providing adding [EPA–R08–OAR–2013–0556, FRL–9945–14– CONTACT section to view the hard copy
NOX as a precursor for ozone, and Region 8] of the docket. You may view the hard
addressing the changes made to 40 CFR copy of the docket Monday through
part 51.116 in the October 20, 2010 Promulgation of State Implementation Friday, 8:00 a.m. to 4:00 p.m., excluding
rulemaking (75 FR 64864) concerning Plan Revisions; Infrastructure federal holidays.
emissions of fine particulate. On Requirements for the 2008 Lead, 2008 FOR FURTHER INFORMATION CONTACT:
Ozone, 2010 NO2, 2010 SO2, and 2012 Abby Fulton, Air Program, U.S.
February 18, 2016, the State of Rhode
PM2.5 National Ambient Air Quality Environmental Protection Agency
Island supplemented this submittal with
Standards; Montana (EPA), Region 8, Mail Code 8P–AR,
a commitment to address these
requirements for PSD. AGENCY: Environmental Protection 1595 Wynkoop Street, Denver, Colorado
Agency. 80202–1129, 303–312–6563,
(b) Disapprovals. (1) 1997 Ozone fulton.abby@epa.gov.
NAAQS: The 110(a)(2) infrastructure ACTION: Final rule.
SUPPLEMENTARY INFORMATION:
SIP submitted on December 14, 2007, is SUMMARY: The Environmental Protection
disapproved for Clean Air Act element Agency (EPA) is approving elements of I. Background
110(a)(2)(H). A Federal Implantation State Implementation Plan (SIP) Infrastructure requirements for SIPs
Plan is already in place at 40 CFR revisions from the State of Montana to are provided in section 110(a)(1) and (2)
52.2080. demonstrate the State meets of the CAA. Section 110(a)(2) lists the
(2) 2008 Ozone NAAQS: The 110(a)(2) infrastructure requirements of the Clean specific infrastructure elements that a
infrastructure SIP submitted on January Air Act (CAA) for the National Ambient SIP must contain or satisfy. The
2, 2013, is disapproved for Clean Air Air Quality Standards (NAAQS) elements that are the subject of this
Act element 110(a)(2)(H). A Federal promulgated for ozone on March 12, action are described in detail in our
2008, lead (Pb) on October 15, 2008, proposed rulemaking (NPR) published
Implantation Plan is already in place at
nitrogen dioxide (NO2) on January 22, on January 26, 2016 (81 FR 4225).
40 CFR 52.2080.
2010, sulfur dioxide (SO2) on June 2, In our NPR, the EPA proposed to
(3) 2008 Lead NAAQS: The 110(a)(2) 2010 and fine particulate matter (PM2.5) approve, conditionally approve, take no
infrastructure SIP submitted on October on December 14, 2012. The EPA is also action on, and disapprove infrastructure
26, 2011, is disapproved for Clean Air approving 110(a)(2)(D)(ii) for the 1997 elements for the 2008 Pb, 2008 ozone,
Act element 110(a)(2)(H). A Federal and 2006 PM2.5 NAAQS. The EPA is 2010 NO2, 2010 SO2 and 1997, 2006 and
Implantation Plan is already in place at conditionally approving CAA section 2012 PM2.5 NAAQS from the State’s
40 CFR 52.2080. 110(a)(2)(C) and (J) with regard to certifications. In this rulemaking, we are
(4) 2010 Nitrogen Dioxide NAAQS: Prevention of Significant Deterioration taking final action to approve
(PSD) and element 3 of 110(a)(2)(D)(i)(II) infrastructure elements from the State’s
The 110(a)(2) infrastructure SIP
for the 2008 ozone, 2008 Pb, 2010 NO2, certifications. We are also conditionally
submitted on January 2, 2013, is 2010 SO2, and 2006 and 2012 PM2.5
disapproved for Clean Air Act element approving elements (C), D(i)(II) element
NAAQS. The EPA is disapproving 3 and (J) with respect to the requirement
110(a)(2)(H). A Federal Implantation element 4 of CAA section
Plan is already in place at 40 CFR to have a PSD program that meets the
110(a)(2)(D)(i)(II) for the 2008 ozone, requirements of part C of Title 1 of the
52.2080. 2010 NO2, 2010 SO2, and 2006 and 2012 Act. The EPA is taking final action to
(5) 1997 PM2.5 NAAQS: The 110(a)(2) PM2.5 NAAQS. Finally, the EPA is disapprove (D)(i)(II) element 4 for the
infrastructure SIP submitted on approving SIP revisions the State 2006 PM2.5, 2008 ozone, 2010 NO2, 2010
September 10, 2008, is disapproved for submitted to update Montana’s PSD SO2, and 2012 PM2.5 NAAQS. We are
Clean Air Act element 110(a)(2)(H). A program and provisions regarding state also taking final action to approve
Federal Implantation Plan is already in boards. revisions to the Administrative Rules of
place at 40 CFR 52.2080. DATES: This rule is effective on May 20, Montana (ARM) from the August 21,
(6) 2006 PM2.5 NAAQS: The 110(a)(2) 2016. 2012 submittal and conditionally
infrastructure SIP submitted on ADDRESSES: The EPA has established a approve a revision from the March 24,
November 6, 2009, is disapproved for docket for this action under Docket ID 2015 submittal to bring Montana’s PSD
Clean Air Act element 110(a)(2)(H). A No. EPA–R08–OAR–2013–0556. All program up to date with respect to
documents in the docket are listed on current requirements for PM2.5. In this
Federal Implantation Plan is already in
the http://www.regulations.gov Web action, we are taking final action to
place at 40 CFR 52.2080.
site. Although listed in the index, some approve new ARM and sections of the
§ 52.2078 [Amended] information is not publicly available, Montana Code Annotated submitted on
e.g., CBI or other information whose December 17, 2015 to satisfy
■ 7. Section 52.2078 is amended by disclosure is restricted by statute. requirements of element (E)(ii), state
removing and reserving paragraph (a). Certain other material, such as boards.
§ 52.2079 [Removed and Reserved]
copyrighted material, is not placed on
the Internet and will be publicly II. Response to Comments
Lhorne on DSK5TPTVN1PROD with RULES
■ 8. Section 52.2079 is removed and available only in hard copy form. We received two comment letters
reserved. Publicly available docket materials are during the public comment period. One
[FR Doc. 2016–08913 Filed 4–19–16; 8:45 am] available either electronically through comment letter was submitted
BILLING CODE 6560–50–P
http://www.regulations.gov or in hard anonymously and the other by Andrea
copy at the Air Program, Environmental Issod from the Sierra Club
Protection Agency (EPA), Region 8, Environmental Law Program (Sierra
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![Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Rules and Regulations 23181
Club) and Anne Hedges from the tracks EPA’s 1980 PSD regulations) and as a would cause or contribute to a NAAQS
Montana Environmental Information result, Montana’s implementation of the PSD violation (see ARM 17.8.745(1)(a)(iii)), this
Center (MEIC). We also received a program is less inclusive and less stringent provision will not ensure protection of the
than the 1980 federal PSD rules because it NAAQS due to emissions from the modified
request for comment period extension
fails to include all physical or operational major sources that avoid PSD permitting due
from Andrea Issod from the Sierra Club. changes that would be major modifications to MTDEQ’s policy interpretations. To
The EPA contacted the commenter and under the federal PSD requirements. Further, determine if a modified source will cause or
after a short discussion, the commenter MTDEQ’s policy interpretations mean that its contribute to a violation of the NAAQS, the
decided not to follow through with their implementation of the PSD program is less de minimis rule requires notification to
extension request. stringent than the 2002 NSR Reform Rules MTDEQ if the physical or operational change
Comment 1: The EPA cannot approve promulgated by EPA on December 31, 2002 will change stack height, stack diameter,
the PSD portions of all these (67 Fed. Reg. 80186), as amended by EPA on stack flow, stack gas temperature, or source
Infrastructure SIPs until EPA has finally June 13, 2007 (72 Fed. Reg. 32526) for location, but it does not require ambient air
physical or operational changes at existing modeling. ARM 17.8.745(b). However, given
approved the Class I and Class II PM2.5 major sources. that the majority of existing sources have
increments into the Montana SIP. I Although EPA has stated in the proposed never been modeled for compliance with the
appreciate EPA’s efforts to address this approval of the Montana infrastructure SIP recent NAAQS for lead, ozone, 1-hour NO2,
issue. approval that it ‘‘does not believe that an 1-hour SO2, or PM2.5 NAAQS, it will be
Response: We agree with the action on a state’s infrastructure SIP extremely difficult for MTDEQ to determine
commenter that adoption of PM2.5 submission is necessarily the appropriate that a change in stack parameters or source
increments is a necessary requirement type of action in which to address possible location would cause or contribute to a
when assessing a state’s PSD program deficiencies in a state’s existing SIP’’ violation of the NAAQS. Further, it is not
for the purposes of CAA Section including existing provisions of the state’s evident that MTDEQ always requires
PSD program that may be inconsistent with submittal of such information to determine if
110(a)(2)(C), (D)(i)(II) element 3, and (J). the current federal PSD rules reflecting NSR construction or changed operating conditions
In this action, we are approving the Reform, EPA has no basis for attempting to at an existing source would affect the plume
necessary portions of Montana’s August limit public comment and EPA review of this rise or dispersion characteristics of a
21, 2012 submission to satisfy the issue when a state’s policy interpretations of modified source, given that MTDEQ allows
requirements of the October 20, 2010 its PSD program result in a program that is certain emission sources to be excluded from
rule, ‘‘Prevention of Significant less inclusive and less stringent than the notification requirements of the de minimis
Deterioration (PSD) for Particulate current federal PSD program, and is therefore rule pursuant to ARM 17.8.745(c).
Matter Less Than 2.5 Micrometers contrary to law.
Response: The commenters’ concerns
(PM2.5)—Increments, Significant Impact * * * * * are directed not to whether the existing
Levels (SILs) and Significant Monitoring EPA cannot assume that Montana’s minor
source permitting program will ensure
SIP for Montana meets the relevant
Concentration (SMC)’’ (75 FR 64864). structural requirements for PSD
protection of these NAAQS for those
Montana adopted 40 CFR 51.166(c)(1), modified sources that, pursuant to MTDEQ’s programs, but rather to whether
which includes Class I and Class II policy interpretations, do not trigger Montana is in fact faithfully
increments, into ARM 17.8.804(1). By applicability under the Montana PSD implementing the existing provisions of
meeting this structural requirement for program as major modifications. The its EPA-approved SIP. As the EPA has
the PSD program in its SIP, the State has Montana SIP includes an exemption from the explained in other contexts, comments
also met the relevant Infrastructure SIP requirement to obtain a Montana Air Quality like these highlight an important
elements relevant to the PSD program. Permit for ‘‘construction or changed
conditions of operation’’ at a facility that
distinction between whether an
Accordingly, the EPA concludes that the infrastructure SIP submission meets the
does not increase the facility’s potential to
issue identified by the commenter has emit by more than 5 tons per year. ARM applicable requirements of the CAA on
been properly addressed. 17.8.743(1), ARM 17.8.745 ‘‘Exclusion for De its face (i.e., pertain to the facial
Comment 2: The Sierra Club and Minimis Changes.’’ This rule allows a source sufficiency of the state’s SIP), and
Montana Environmental Information to apply an emissions test comparing whether a state is actually complying
Center (MEIC) Comment Letter states potential to emit pre- and post-change, and with the requirements of that SIP (i.e.,
the following on pages 2, 3, 26 and 27: if the increase in potential to emit is less than pertain to adequacy of the state’s
5 tons per year, no Montana Air Quality
Sierra Club and Montana Environmental
Permit is required for the construction or
implementation of the SIP).1 These
Information Center (MEIC) submit to EPA comments implicate the question of the
changed operation. For those modifications
that the Montana PSD program as degree to which implementation
implemented by MTDEQ fails to require PSD to existing major sources that do not trigger
PSD based on MTDEQ’s policy concerns are relevant in the context of
permits for all modified major sources that
are required to be covered under the SIP PSD interpretations allowing the source to use an acting on a state’s infrastructure SIP. In
permitting program pursuant to 40 CFR actual emissions to [an] estimated future the context of an infrastructure SIP
51.166, due to MTDEQ’s policy actual emissions test, it is likely that such a submission, the EPA interprets the
interpretations of its PSD program that result modified source could avoid the requirement requirements of section 110(a)(1) and (2)
in rules that are less stringent and thus less to obtain a Montana Air Quality permit under to require the Agency to focus on
inclusive than the federal PSD program. the potential-to[-]potential comparison of the
de minimis exemption in Montana’s SIP.
whether the state has a SIP that provides
Further, because the MTDEQ’s the requisite legal framework for
implementation of the Montana PSD program Even if a modified major source could not
does not cover all PSD-subject modified initially be exempt under the potential-to- implementation, maintenance and
major sources, MTDEQ’s implementation of potential test of the Montana de minimis enforcement of the NAAQS. Generally
its PSD program also fails to cover all rule, the Montana rule also allows an existing speaking, the EPA’s review of
regulated [New Source Review] NSR source to revise the federally enforceable infrastructure SIP submissions is
pollutants including GHG pollutants for emission limitations (thus reducing its limited to whether, pursuant to CAA
Lhorne on DSK5TPTVN1PROD with RULES
which the PSD permitting requirements only potential to emit) through an administrative section 110(a)(2), the submission
apply to ‘‘anyway sources,’’ i.e., sources that process pursuant to ARM 17.8.764 (see ARM
would otherwise be subject to PSD 17.8.745(1)(a)(5) and (2). 1 See ‘‘Approval and Disapproval and
permitting for other pollutants. While the de minimis rule does not allow Promulgation of Implementation Plans; Texas;
MTDEQ is following policy interpretations construction or changed conditions that Infrastructure and Interstate Transport
that differ from its EPA-approved PSD rule would affect the plume rise or dispersion Requirements of the 1997 Ozone and the 1997 and
incorporated into the Montana SIP (which characteristics of emissions in a manner that 2006 PM2.5 NAAQS,’’ 76 FR 81371 (Dec. 28, 2011).
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![23182 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Rules and Regulations
facially meets the requirements of the is finalizing its proposed approval of the define the applicability to PSD for physical
statutory criteria outlined therein, as infrastructure SIP submission that is or operational changes at an existing source
applicable. In the case of section currently before the Agency. If the EPA based on the same regulatory language in
later determines that there are indeed EPA’s PSD regulations as of 1980. That is, to
110(a)(2)(C), for example, the statute
determine if a physical change or change in
requires a state to have a SIP that concerns with respect to the the method of operation at an existing major
‘‘include[s] a program to provide for implementation of the PSD program in source is subject to PSD as a major
. . . regulation of the modification and Montana, the Agency intends to take modification, one evaluates changes in
construction of any stationary sources appropriate action to ensure those ‘actual emissions [.]
. . . including a permit program as problems are rectified using whatever The comment evaluates the definition of
required in parts C and D of this statutory tools are appropriate to the ‘‘actual emissions’’ and how Montana’s
subchapter.’’ Thus, the EPA reviews a implementation problem identified. SIP has defined this term over the years,
state’s infrastructure SIP submission to With respect to the requirements
and notes two substantive revisions to
assure that the structural elements of the related to PSD relevant to this approval
the definition of ‘‘actual emissions’’
state’s PSD permitting program meets of the infrastructure SIP submission, the
EPA has determined that the State’s SIP since 1980, stating on pages 6, 7, and 8:
current CAA requirements for such
programs, e.g., that it addresses GHG as previously approved, and as revised The first revision was made in 1992, where
emissions. in this action, meets the relevant EPA modified the definition of ‘‘actual
This is not to say that the EPA has no structural requirements for purposes of emissions’’ to allow electric utility steam
generating units (EGUs) to use the
role in reviewing whether a state is PSD in section 110(a)(2)(C), (D)(i)(II) ‘‘representative actual annual emissions,’’
faithfully implementing its approved element 3, and (J). Some examples of and adopted associated definitions including
SIP, or otherwise complying with the these basic structural SIP requirements of ‘‘representative actual annual emissions’’
CAA and its implementing regulations. include having state law authority to and emissions reporting provisions for EGUs.
To the contrary, there are multiple carry out the SIP, an overarching 57 Fed. Reg. 32314 at 32335–6 (July 21,
statutory tools that the EPA can use to permitting program in place, and a 1992); 40 CFR 51.166(b)(21)(iv) and (v),
rectify problems with state properly deployed monitoring network. (b)(30), and (b)(32). In addition, although
implementation of its SIP, and the As to the PSD program in particular, EPA did not adopt any regulatory revisions
existence of these tools is consistent these basic structural requirements regarding the actual emissions baseline
before a physical or operational change, EPA
with the EPA’s interpretation of section include those provisions necessary for set forth a presumption that it considers any
110(a)(2) with respect to the Agency’s the permitting program to address all 2 year period in the 5 years immediately
role in reviewing infrastructure SIP federally regulated pollutants and the preceding the physical or operational change
submissions. For example, the CAA proper sources. The EPA considers at an EGU to be representative of normal
provides the EPA the authority to issue action on the infrastructure SIP source operations for the EGU. 57 Fed. Reg.
a SIP call, 42 U.S.C. 7410(k)(5); make a submissions required by section 32325. The 1992 rulemaking is referred to as
finding of failure to implement, id. 110(a)(1) and (2) to be an evaluation of the ‘‘WEPCO Rule’’ because the rule changes
§§ 7410(m), 7509(a)(4); and take a state’s SIP to assure that it meets the came about as a result of the 7th Circuit
measures to address specific permits basic structural requirements for the Court decision in Wisconsin Electric Power
Co. v. Reilly, 893 F.2d 901 (7th Cir. 1990)
pursuant to the EPA’s case-by-case new or revised NAAQS, not a time to (‘‘WEPCO Decision’’).
permitting oversight. See, e.g., address all potential substantive defects A review of the current SIP-approved
§ 7661d(b). The appropriateness of in existing SIP provisions, or alleged Montana rules show that Montana did not
employing these authorities depends on defects in implementation of the SIP. revise its PSD regulations to incorporate any
the nature and extent of the particular [Therefore, EPA generally considers of the regulatory changes of the 1992 WEPCO
implementation problems at issue. evaluations of a state’s implementation rulemaking.
With respect to Montana’s of its NSR program to be outside the In 2002, EPA again revised the definition
infrastructure SIP submission, the EPA scope of an infrastructure SIP review, of ‘‘actual emissions’’ and adopted new terms
analyzed the submission itself, and rather than an unambiguous and definitions of ‘‘projected actual
emissions’’ and ‘‘baseline actual emissions’’
evaluated the text of its provisions for requirement of the EPA’s action on an along with numerous other revisions to its
compliance with the relevant elements infrastructure SIP with regard to section PSD regulations. 67 Fed. Reg. 80186–80289
of section 110(a)(2). In the proposal, the 110(a)(2)(C).] (Dec 31, 2002, also known as ‘‘NSR Reform’’
EPA explicitly evaluated the State’s Comment 3: The Sierra Club and Rule). EPA adopted a two-step process for
submission on a requirement-by- MEIC comment letter gives a history of determining PSD applicability for physical or
requirement basis and explained its the Montana PSD program as well as a operational changes. First, it must be
views on the adequacy of the State’s SIP history of the corresponding federal PSD determined if a project will result in a
for purposes of meeting the program with respect to how it is significant emission increase of any regulated
infrastructure SIP requirements. determined whether a physical or NSR pollutant and, if so, then second, it must
The EPA appreciates and takes be determined if the project will result in a
operational change at an existing major
significant net emissions increase of any
seriously the commenters’ assertions stationary source is subject to PSD regulated NSR pollutant. 67 Fed. Reg. 80260;
that Montana has adopted ‘‘policy permitting requirements. The comment 40 CFR 51.166(a)(7)(iv)(a)–(f). EPA essentially
interpretations’’ outside the context of discusses MTDEQ’s policy allowed all sources (not just EGUs as allowed
the SIP that may undermine the State’s interpretations recently set forth in a in 1992) to use an actual-to-projected actual
implementation of the SIP as approved citizen suit enforcement proceeding, emissions increase test to determine whether
by the EPA. However, because this stating that these interpretations ‘‘make a physical or operational change was a major
action involves a review of the SIP Montana’s implementation of the PSD modification, except in certain circumstances
itself, the EPA is not evaluating the program less stringent’’. The Sierra Club such as when a new emissions unit is added.
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67 Fed. Reg. 80260–2; 40
merits of these assertions concerning and MEIC Comment Letter states the CFR 51.166(a)(7)(iv)(a)–(f), (b)(40) and (b)(47).
implementation of the SIP in the context following on pages 4 and 5: In the NSR Reform rules, EPA adopted
of this action. Instead, the EPA intends The basic structure of Montana’s PSD several new rules. EPA adopted a new
to evaluate the merits of these permitting rules has been the same since the definition of ‘‘baseline actual emissions’’
assertions, separate from this action, at EPA’s initial SIP approval of Montana’s PSD which codified the 2-in-5 year presumptive
a future time. In the meantime, the EPA rules. Specifically, Montana’s PSD rules baseline that EPA announced in the 1992
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![23186 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Rules and Regulations
Order 13132 (64 FR 43255, Aug. 10, agency promulgating the rule must Greenhouse gases, Lead, Nitrogen
1999); submit a rule report, which includes a dioxide, Ozone, Particulate matter,
• Is not an economically significant copy of the rule, to each House of the Reporting and recordkeeping
regulatory action based on health or Congress and to the Comptroller General requirements, Sulfur oxides, Volatile
safety risks subject to Executive Order of the United States. The EPA will organic compounds.
13045 (62 FR 19885, April 23, 1997); submit a report containing this action Authority: 42 U.S.C. 7401 et seq.
• Is not a significant regulatory action and other required information to the
subject to Executive Order 13211 (66 FR U.S. Senate, the U.S. House of Dated: March 30, 2016.
28355, May 22, 2001); Representatives, and the Comptroller Debra H. Thomas,
• Is not subject to requirements of General of the United States prior to Acting Regional Administrator, Region 8.
Section 12(d) of the National publication of the rule in the Federal 40 CFR part 52 is amended as follows:
Technology Transfer and Advancement Register. A major rule cannot take effect
Act of 1995 (15 U.S.C. 272 note) because until 60 days after it is published in the PART 52—APPROVAL AND
application of those requirements would Federal Register. This action is not a PROMULGATION OF
be inconsistent with the CAA; and, ‘‘major rule’’ as defined by 5 U.S.C. IMPLEMENTATION PLANS
• Does not provide the EPA with the 804(2).
discretionary authority to address, as Under section 307(b)(1) of the Clean ■ 1. The authority citation for part 52
appropriate, disproportionate human Air Act, petitions for judicial review of continues to read as follows:
health or environmental effects, using this action must be filed in the United Authority: 42 U.S.C. 7401 et seq.
practicable and legally permissible States Court of Appeals for the
methods, under Executive Order 12898 appropriate circuit by June 20, 2016. Subpart BB—Montana
(59 FR 7629, Feb. 16, 1994). Filing a petition for reconsideration by
The SIP is not approved to apply on the Administrator of this final rule does ■ 2. Section 52.1370 is amended by:
any Indian reservation land or in any not affect the finality of this action for ■ a. In paragraph (c) adding in
other area where the EPA or an Indian the purposes of judicial review nor does numerical order, the table entries for
tribe has demonstrated that a tribe has it extend the time within which a ‘‘17.8.150’’, ‘‘17.8.151’’, and ‘‘17.8.152’’;
jurisdiction. In those areas of Indian petition for judicial review may be filed, and revising the table entries for
country, the rule does not have tribal and shall not postpone the effectiveness ‘‘17.8.801’’, ‘‘17.8.804’’, ‘‘17.8.818’’,
implications and will not impose of such rule or action. This action may ‘‘17.8.822’’, and ‘‘17.8.825’’; and
substantial direct costs on tribal not be challenged later in proceedings to ■ b. In paragraph (e), under ‘‘(1)
governments or preempt tribal law as enforce its requirements. (See CAA Statewide’’ adding three entries at the
specified by Executive Order 13175 (65 section 307(b)(2).) end of the table.
FR 67249, November 9, 2000). The revisions and additions read as
The Congressional Review Act, 5 List of Subjects in 40 CFR Part 52
follows:
U.S.C. 801 et seq., as added by the Small Environmental protection, Air
Business Regulatory Enforcement pollution control, Carbon monoxide, § 52.1370 Identification of plan.
Fairness Act of 1996, generally provides Incorporation by reference, * * * * *
that before a rule may take effect, the Intergovernmental relations, (c) * * *
State effective EPA final rule
State citation Rule title Final rule citation Comments
date date
(1) Statewide
(i) Administrative Rules of Montana, Subchapter 01, General Provisions
* * * * * * *
17.8.150 .................... Definitions ...................................................... 10/30/2015 4/20/2016 [Insert Federal Reg-
ister citation].
17.8.151 .................... Board Action .................................................. 10/30/2015 4/20/2016 [Insert Federal Reg-
ister citation].
17.8.152 .................... Reporting ....................................................... 10/30/2015 4/20/2016 [Insert Federal Reg-
ister citation].
(vi) Administrative Rules of Montana, Subchapter 08, Prevention of Significant Deterioration of Air Quality
* * * * * * *
17.8.801 .................... Definitions ...................................................... 10/14/2011 4/20/2016 [Insert Federal Reg-
ister citation].
17.8.804 .................... Ambient Air Increments ................................. 10/14/2011 4/20/2016 [Insert Federal Reg-
ister citation].
17.8.818 .................... Review of Major Stationary Source and 10/10/2014 4/20/2016. [Insert Federal Reg-
Major Modifications—Source Applicability ister citation].
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and Exemptions.
17.8.822 .................... Air Quality Analysis ....................................... 10/14/2011 4/20/2016 [Insert Federal Reg-
ister citation].
17.8.825 .................... Sources Impacting Federal Class I Areas— 10/14/2011 4/20/2016 [Insert Federal Reg-
Additional Requirements. ister citation].
.
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![Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Rules and Regulations 23187
State effective EPA final rule
State citation Rule title Final rule citation Comments
date date
* * * * * * *
* * * * * (e) * * *
State effective Notice of final
Title/subject NFR citation
date rule date
(1) Statewide
* * * * * * *
Infrastructure Requirements for the 2008 Lead, 2008 8-hour Ozone, N/A 4/20/2016 [Insert Federal Register citation].
2010 NO2, 2010 SO2, and 2012 PM2.5 National Ambient Air Quality
Standards.
Infrastructure Requirements, Interstate Transport of Pollution N/A 4/20/2016 [Insert Federal Register citation].
110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS.
Montana Code Annotated 2–2–121(2)(e) and 2–2–121(8) ....................... N/A 4/20/2016 [Insert Federal Register citation].
* * * * * * *
* * * * * the direct final rule for Clarification of 9350). We stated in that direct final rule
[FR Doc. 2016–08916 Filed 4–19–16; 8:45 am] Requirements for Method 303 that if we received adverse comment by
BILLING CODE 6560–50–P Certification Training, published on March 28, 2016, the direct final rule
February 25, 2016. would not take effect and we would
DATES: Effective April 20, 2016, the EPA publish a timely withdrawal in the
ENVIRONMENTAL PROTECTION withdraws the direct final rule Federal Register. We subsequently
AGENCY published at 81 FR 9350, on February received adverse comment on that direct
40 CFR Part 63 25, 2016. final rule. We will address those
FOR FURTHER INFORMATION CONTACT: Ms. comments in any subsequent final
[EPA–HQ–OAR–2014–0492; FRL–9945–34– Kim Garnett, U.S. EPA, Office of Air action, which will be based on the
OAR] Quality Planning and Standards, Air parallel proposed rule also published on
RIN 2060–AR97 Quality Assessment Division, February 25, 2016 (81 FR 9407). As
Measurement Technology Group (Mail stated in the direct final rule and the
Clarification of Requirements for Code: E143–02), Research Triangle Park, parallel proposed rule, we will not
Method 303 Certification Training NC 27711; telephone number: (919) institute a second comment period on
541–1158; fax number: (919) 541–0516; this action.
AGENCY: Environmental Protection email address: garnett.kim@epa.gov.
Agency (EPA). Dated: April 14, 2016.
SUPPLEMENTARY INFORMATION: Because
ACTION: Withdrawal of direct final rule. Janet G. McCabe,
the EPA received adverse comment, we
are withdrawing the direct final rule for Acting Assistant Administrator.
SUMMARY: Because the Environmental [FR Doc. 2016–09157 Filed 4–19–16; 8:45 am]
Clarification of Requirements for
Protection Agency (EPA) received
Method 303 Certification Training, BILLING CODE 6560–50–P
adverse comment, we are withdrawing
published on February 25, 2016 (81 FR
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Document Created: 2016-04-20 01:52:05
Document Modified: 2016-04-20 01:52:05
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective on May 20, 2016. | |
| Contact | Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, 303-312-6563, [email protected] | |
| FR Citation | 81 FR 23180 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Carbon Monoxide; Incorporation by Reference; Intergovernmental Relations; Greenhouse Gases; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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